Employment discrimination on the basis of race, color, religion, sex, or national origin is prohibited under Title VII of the Civil Rights Act.[1] Title VII’s retaliation provision makes it unlawful for an employer to retaliate against an employee for engaging in protected conduct.[2] Similarly, the Minnesota Human Rights Act (“MHRA”) prohibits employment discrimination on the basis of “race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, familial status, disability, sexual orientation, or age.”[3] In Musolf v. J.C. Penney Co., Inc., the Eight Circuit Court of Appeals considered whether an employee’s termination constituted retaliation and reprisal under Title VII and the MHRA.[4] The Eighth Circuit affirmed summary judgment in favor of the employer, finding no causal link between the sexual harassment complaint and termination.[5]

History

Loralie Ann Musolf (“Musolf”) was a loss prevention specialist for J.C. Penney Company, Inc. (“J.C. Penney”).[6] In January and February 2010, Musolf complained to her direct supervisor that a co-worker had sexually harassed her on multiple occasions.[7] Musolf was repeatedly informed by her supervisor that the situation was addressed.[8] By August 2010, several employees filed complaints against Musolf.[9] When confronted by her supervisor, Musolf refused to cooperate.[10] Soon thereafter, Musolf’s supervisor suspected Musolf of stealing company documents.[11] On September 2, 2010, Musolf’s supervisor recommended Musolf’s termination.[12] On the same day, Musolf e-mailed J.C. Penney’s district manager expressing concern over the handling of her sexual harassment complaint.[13] Musolf was fired for failure to cooperate with a company investigation and for stealing company documents containing confidential information.[14]

Musolf subsequently filed a lawsuit against J.C. Penney pursuant to Title VII and the MHRA alleging she was terminated in retaliation for complaining to her supervisor about sexual harassment.[15] The district court granted J.C. Penney’s motion for summary judgment because Musolf failed to establish a causal link between her complaint and termination.[16] Musolf appealed to the Eighth Circuit which affirmed the grant of summary judgment to J.C. Penney.[17]

Court’s Analysis

The court began its analysis by outlining the elements necessary to successfully bring a retaliation claim under Title VII.[18] Musolf must show: “(1) she engaged in protected conduct; (2) a reasonable employee would have found the retaliatory action materially adverse; and (3) the materially adverse action was causally linked to the protected conduct.”[19] The district court found, and the court of appeals agreed, that the first and second elements were satisfied.[20] Namely, Musolf’s complaint about sexual harassment constituted protected conduct and Musolf’s termination constituted adverse employee action.[21] This case, therefore, turned on whether a causal link existed between Musolf’s complaint and her termination.[22]

The Supreme Court, in Univ. of Tex. Sw. Med. Ctr. v. Nassar, recently held that the causal link in Title VII cases is but-for causation.[23] The district court applied the Nassar but-for causation standard and found Musolf’s sexual harassment complaint was not the but-for cause of her termination.[24] Musolf argued on appeal that the district court applied the wrong standard of causation because Minnesota courts have not determined whether the Nassar but-for standard of causation applies to reprisal claims under the MHRA.[25] Minnesota courts apply a lower standard of causation, requiring only that “an illegitimate reason more likely than not motivated the discharge decision.”[26]

Although Minnesota courts have not determined whether to apply the Nassar but-for standard of causation to claims brought under the MHRA, such determination need not be made here, the court of appeals explained, because Musolf failed to meet both the Nassar but-for standard and the standard employed by Minnesota courts.[27] The court expressed concern regarding the seven-month time-lag between Musolf’s complaint and termination.[28] The court noted that a large gap between the protected conduct and termination “weakens the inference of causation.”[29] During the seven-month time-lag, Musolf was praised and given a salary increase.[30] It was not until after Musolf was suspected of stealing company documents that she was fired.[31] The Eighth Circuit held that Musolf failed to establish a causal link between filing her sexual harassment complaint and her discharge.[32] Therefore, Musolf failed to show that J.C. Penney engaged in retaliation.[33]

Author’s Analysis

Under Title VII and the MHRA, “[a]n employer may not dissuade employees from invoking the protections of the civil rights laws by retaliating against those who bring discrimination to light.”[34] Such anti-retaliation provisions, however, do not insulate employees from disciplinary action.[35] An employee who has engaged in a protected activity can be disciplined, as long as he is not disciplined because he engaged in that protected activity.[36] To shield each employee who engages in a protected activity from all discipline would essentially create job security.

The Eighth Circuit correctly suspected that Musolf attempted to insulate herself from discipline by engaging in a protected activity just before her termination.[37] Mulsolf’s email to the district manager was sent right before her impending termination.[38] The complaint merely related back to her original complaint, rendering the temporal proximity to her termination irrelevant.[39] The Eighth Circuit has warned, “[w]ithout our insistence that a claim of unlawful retaliation be bolstered by appreciable evidence beyond a temporal connection . . . an employer seeking to address the problem of underperforming employees could be paralyzed by the fear (or reality) of retaliation lawsuits, and unable to manage its workforce.”[40] Musolf failed to bolster her temporal argument with some other retaliatory motive and thus failed to establish the casual link.

Conclusion

The Eighth Circuit affirmed the grant of summary judgment to J.C. Penney. In doing so, the court refused to allow Mulsolf to insulate herself from discipline. Musolf failed to establish a causal link between her complaint and subsequent termination. As such, Musolf failed to establish a prima facie case of retaliation.

[23]Id. at 918; see also Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013) (“Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in § 2000e–2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”)

* J.D. Candidate, 2016, Saint Louis University School of Law. I would like to thank the Saint Louis University Law Journal for their help in the publication of this case summary. I would also like to thank my family for their continued love and support.

In Teaching Employment Discrimination Law, Virtually, Professor Miriam Cherry tackles a fascinating method for engaging law students in the world of employment discrimination law: literally in a new, virtual world.[1] Cherry writes in detail about the process, beginning with the goals of her method, moving through the actual method, and closing with possible concerns and great thoughts on possibilities for the near future.[2]

Cherry’s unique method involves Second Life, a virtual world where users can create avatars and roam around on a website, interacting with others and changing your appearance as you go.[3] The options are endless: blue hair, purple skin, and even non-human avatars. Many people live their lives through Second Life, from raising real money for underprivileged children, to performing in a band, to creating fashion not yet possible in the real world.[4] There are even employment opportunities. Cherry terms this as virtual work, “an umbrella term that includes off-site work, crowdsourced micro-labor, in-game work or gamified work, and work in virtual worlds.”[5] Employment agencies have even started recruiting through Second Life, gathering resumes and interviewing potential employees through their avatars.[6] Understanding this virtual work is the first goal of Cherry’s lesson in employment discrimination via Second Life.[7]

Cherry also aims to teach cultural competency skills through Second Life.[8] Second Life is an opportunity to teach the students the ability to understand important civil rights issues that often underlie the subject matter of a discrimination course.[9] The ability to understand and be sensitive to these cultures and civil rights issues is of obvious importance for attorneys who work with clients from different backgrounds.[10]

To implement these goals, Cherry and the students dove right in to Second Life.[11] Throughout the registration process, Cherry observed as students changed their avatars and excitedly chose traits for their new personas.[12] Minus some minor confusion (most students chose avatars that looked nothing like themselves and continued to change their avatars throughout class), the students were excited and enthusiastic.[13] Throughout the class, Cherry and the students explored the different worlds of Second Life, and bounced from virtual island to island.[14] The students visited a virtual law office and Manpower Island, the Second Life home of Manpower, a temporary staffing firm.[15] This is where the students were able to find information on how employers use the virtual world to recruit employees.[16]

Cherry expresses only a few concerns with teaching through Second Life. Only one student in her class had trouble, due to difficulty with the technology.[17] There is a small concern regarding cybertypes, basically described as virtual stereotyping.[18] For example, Asian males are often portrayed as samurai or characters from martial arts movies, while Asian women are portrayed as exotic sexual objects.[19] However, Cherry believes this can be avoided in the context of class where the students and professor have an existing relationship and the issue can be addressed beforehand.[20]

Ultimately, there appears to be real possibility for diversity programs through the use of virtual worlds like Second Life.[21] Current diversity programs are flawed and often seen as “preaching to the choir,” but a new twist could help.[22] As Cherry explains, it could be extremely helpful to have a man take on the identity of a woman online and experience the unwanted sexual encounters most women are used to.[23] A program like Second Life could certainly help convince skeptics of the existence of sexual harassment.[24] The virtual world could also force employers to question the reasons for some assumptions about people based on those protected categories, and whether those things are actually relevant to the job.[25]

With the number of employment discrimination claims on the rise,[26] Second Life presents an interesting situation, not only for diversity programs, but also for employers and even students. A human resources professional noted that Second Life was challenging because “you don’t know if it’s a man or a woman, if they’re young or old, and you have to ask questions to find out what’s behind the avatar.”[27] As Cherry points out, this curiosity is understandable, but whether or not the person behind the avatar is young or female should not matter because those are protected categories.[28] This confusion presents a unique and unexpected opportunity for “virtual discrimination.” As Cherry states, “[t]he question of whether there is discrimination against the avatar or the person behind the avatar is a vexing one.”[29] Consequently, there could be some rather strange issues and challenges that accompany hiring or teaching through Second Life. Not only is there opportunity to discriminate based on the unknown sex, sexuality or ethnic group of an avatar, it could also be possible to discriminate in Second Life against non-humans.[30] This is quite literally a whole new world of discrimination, and it could be too soon to enter these scenarios with students, without knowing all of the boundaries or possibilities. This, too, could likely be avoided with careful conversation in the context of the classroom before entering Second Life.

Overall, though, Cherry seems to have struck gold with a balance of teaching new technology and incorporating discrimination law, all while teaching crucial lessons about cultural sensitivity. Learning cultural competency skills is a must for law students, and experiencing the cultures of Second Life and how to approach the ability to build avatars and constantly change them is a perfect vehicle for that lesson. It appears to be a hands-on way to allow students to really explore a different world and perhaps experience that discrimination first hand. The idea should be approached with caution, though. Both the idea of tinkering with an identity and facing discrimination head on could be particularly troublesome for some students. However, there are ways to avoid this. For example, for students who struggle with technology, there is always the option of allowing them to write a paper on the subject matter, but it would be best to avoid that situation entirely. With careful implementation and supervision, it would be a great opportunity to incorporate a virtual world into law school, and students would be fortunate to learn so in depth as Cherry’s modern virtual method.

Qualified immunity is a powerful affirmative defense under section 1983 that aims to protect police officers sued in their individual capacities after violating a person’s Fourth Amendment rights in unreasonable searches and seizures.[1] The Supreme Court established this doctrine protecting officers in situations in which they could not have reasonably known that a person’s Constitutional rights were being violated.[2] Specifically, the defense protects “government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[3] Just recently, the Eighth Circuit in Parker v. Chard reversed the United States District Court for the District of Minnesota and discussed the application of the qualified immunity doctrine in the context of corroborated anonymous tips.[4] However, in light of recent national problems involving issues of racially motivated harassment combined with a widespread lack of faith in police enforcement, the court may have missed an important opportunity to begin rectifying the situation.[5]

Background

On October 26, 2011, police officers Adam Chard and Robert Illetschko of Minneapolis, Minnesota, were working in the city’s Fifth Precinct, also known as “Uptown.”[6] Upon being told by another officer that there were “a couple of black females that had just stolen merchandise from Urban Outfitters, which was right next door to Victoria’s Secret,” the officers were also informed by Heartbreaker, another store nearby, that there were “potential shoplifting suspects in their store.”[7] Heartbreaker’s manager had received that information from one of the store’s employees, who had in turn received a tip from an anonymous customer.[8] The anonymous customer stated that she had “observed a group of black females run from Victoria’s Secret,” and believed that their act of running was indicative of shoplifting.[9] Officer Illetschko called Victoria’s Secret and spoke to a staff member who “couldn’t verify” that anything had been stolen.[10] Upon arrival, the customer who had told the Heartbreaker employee of her suspicions was not identified, was not present, and did not speak directly with or call the police.[11] Neither the manager who called the police, nor the employee who relayed the information to the manager had personally observed any group of black females involved in any suspicious behavior.[12] The anonymous customer simply reported that she saw a group of black girls running out of Victoria’s Secret, who she then believed to be in Heartbreaker.[13]

Around the same time, Alexys Parker had been shopping in Uptown with her two female college roommates, and never went into Victoria’s Secret that day.[14] Parker and her friends had been in Heartbreaker at the same time the police officer was speaking with the store manager, and overheard their conversation.[15] Shortly after, Parker and her friends paid for their merchandise and went to their car.[16] Officers Chard and Illetscchko, relying only on the ill-reported tip from an anonymous customer that the potential shoplifters were “a group of black females,” saw Parker and her friends leave the store and followed them.[17] The officers made no attempt to watch surveillance video from Victoria’s Secret[18] As the girls got into their car and began pulling out of their parking spot, Chard turned on his emergency lights and pulled in front of the girls.[19]

Approaching the car, Chard asked if the girls had been into Victoria’s Secret and they said they had not.[20] Upon notifying the girls of the report of a shoplifting incident, the officers asked to search the visible bags in the back of Parker’s car, to which she consented.[21] Ultimately, the officers searched the bags and found that Parker and her friends were not the shoplifters.[22] Not until after they searched Parker’s car, ran her driver’s license number, and eventually concluded that she was not the shoplifter, did the officers watch surveillance video.[23] Parker later filed suit, alleging a series of claims involving unreasonable search and seizure and violation of her Fourth Amendment rights.[24] The district court dismissed all of Parker’s allegations except for one; the court agreed that the officers violated her rights by seizing her without reasonable suspicion, based only on an unreliable and uncorroborated anonymous tip.[25] However, the Eighth Circuit upheld the officers’ qualified immunity defense, finding that the officers had sufficient reasonable suspicion to conduct the stop.[26]

Court’s Analysis

In considering Parker’s claim, the Eighth Circuit focused not on the violation of Parker’s Fourth Amendment rights, but on her inability to overcome qualified immunity.[27] The court found that the tip from the anonymous customer was a “firsthand observation of readily visible activity,” and thus it was sufficiently reliable.[28] Distinguishing the cases Parker relied upon in her argument, the court found that in her situation, the anonymous eyewitness tip was sufficient despite the lack of the customer’s inside information about Parker or any other relevant circumstances. Rather than identifying this customer’s statement as a “bare-report of an unknown, unaccountable informant,” which the Supreme Court previously had done in a similar case,[29] the Eighth Circuit found that the customer’s tip was credible because it was an observation of visible activity.[30] Moreover, the court found that inside information from a reliable informant was only necessary in situations where there is a concern of concealed criminal activity.[31]

Additionally, the court found that the officers had a second reason reason to find that this anonymous tip was credible: they had corroborated the part of the tip alleging suspicious activity—that a group of black females were simply running—with the statement from Victoria’s Secret that a group of black females had recently run out of their store.[32] Shockingly, the court found that, “the officers’ awareness of a recent, nearby shoplifting by individuals matching the race and gender of Parker and her friends…” was in fact an appropriate circumstance with which to balance the anonymous tip in order to find a reasonable suspicion— despite both officers personally observing that “Parker was not acting suspiciously.”[33] Finding that based on the “circumstances,” the officers acted reasonably in suspecting Parker of shoplifting, the Eighth Circuit upheld the officer’s qualified immunity defense, thus depriving Parker of her Constitutional rights without any remedial action.[34]

Author’s Analysis

While acknowledging that Parker’s constitutional rights may have been violated, the Eighth Circuit appears to disregard the recent “storm” that has ensued involving issues of racial profiling and unreasonable police behavior.[35] In attempting to distinguish Parker’s case—and support the reliability of this unaccountable, anonymous informant—the court separates this situation from cases in which there is “concealed criminal activity,” while avoiding the fact that shoplifting, in literal terms, can be described as concealed.[36] Moreover, as the district court points out, the only thing the officers were sure of was that a group of black females had run from Victoria’s Secret.[37] No one could be sure that anything had been stolen.[38] In an attempt to find that the anonymous tip was sufficiently corroborated with the surrounding circumstances, the court neglects the fact that the police officers actually witnessed Parker and her friends paying for their merchandise before leaving the store.[39] However, in more realistic terms, the officers corroborated only “visible attributes”—specifically, that Parker and her friends were a group of black females.[40] Tellingly, as stated by the district court, the anonymous tip regarding the identification of the females is “no different than pointing to a black male in a plaid shirt, and, in fact, was arguably less specific [than Parker’s situation] because the customer offered no identifiers like clothing,” or what they were wearing, simply that they were black females running.[41] Not only is running out of a store perfectly legal, but the court should not have relied on such a bare report made out by an unidentifiable, unreliable tipster that focused so much on race, gender, and only questionable activity. These circumstances did not give rise to reasonable suspicion that Parker and her friends were in fact the shoplifters, and the Eighth Circuit should have instead affirmed the lower court’s opinion.

Conclusion

In order for society to begin putting the race issues of recent times to rest, courts must also do their part to help restore faith in the criminal justice system by remedying these types of wrongs.[42] Not only does it appear that the Eighth Circuit is reaching too far to uphold the qualified immunity defense, but by disregarding any possibility that the officers may have acted too quickly in a situation where “visible attributes” and racial classifications were the only basis of suspicion, the court has neglected an opportunity to send an important message. Rather, the court should have reinforced the importance of our Constitutional rights and the need for officers to base their quick decision making on something more than visible attributes.

[1]See U.S. Const. amend. IV (prohibiting unreasonable search and seizure by government officials); see also 42 U.S.C. § 1983 (2012)(“Every person who under. . . any statute, ordinance, regulation . . . subjects or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights . . . secured by the Constitution and laws, shall be liable to the party injured in an action at law. . . .”)

[22]Id.; Some facts are disputed, such as the length of the stop and the details of the conversation between Parker and Officer Chard subsequent to the stop. For example, Parker alleges that during the conversation with Chard, he stated that “unfortunately. . . [i]f people like yourself come to this area, you’re going to be subjected to things like this,” and then said that he was referring to minorities. Parker, 998 F. Supp. 2d at 803. Moreover, Parker believes the stop lasted between twenty to thirty minutes, while Officer Chard stated it only lasted around four minutes and Officer Illetschko believed it to be between five to ten minutes. Id.

[24] In her complaint, Parker assert[ed] the following claims: (1) unreasonable seizure under 42 U.S.C. § 1983 against the individual defendants; (2) illegal arrest under 42 U.S.C. § 1983 against the individual defendants; (3) unreasonable search under 42 U.S.C. § 1983 against the individual defendants; (4) violation of equal protection under 42 U.S.C. § 1983 against the individual defendants; (5) unreasonable search and seizure, illegal arrest, and violation of equal protection under 42 U.S.C. § 1983 against the City of Minneapolis; (6) Racial Discrimination in violation of Minn. Stat. § 363A.12 against the City of Minneapolis; and (7) false arrest and imprisonment against all Defendants in violation of Minnesota state law. Id. at 804.

* J.D. Candidate, 2016, Saint Louis University School of Law. I would like to thank my family and friends for their continued loved and support.

]]>http://www.slu.edu/colleges/law/journal/parker-v-chard-corroborating-anonymous-tips-based-on-visible-attributes/feed/0Morality’s Present (and Future) Place in Law: A Response to Bruce P. Frohnen’s, The Irreducible, Minimal Morality of Law: Reconsidering the Positivist/Naturalist Law Divide in Light of Legal Purpose and the Rule of Lawhttp://www.slu.edu/colleges/law/journal/moralitys-present-and-future-place-in-law-a-response-to-bruce-p-frohnens-the-irreducible-minimal-morality-of-law-reconsidering-the-positivistnaturalist-law-divide-in-light-of/
http://www.slu.edu/colleges/law/journal/moralitys-present-and-future-place-in-law-a-response-to-bruce-p-frohnens-the-irreducible-minimal-morality-of-law-reconsidering-the-positivistnaturalist-law-divide-in-light-of/#commentsFri, 13 Feb 2015 18:56:51 +0000http://www.slu.edu/colleges/law/journal/?p=6774Continue Reading →]]>Lauren Gamel

With the Supreme Court set to address whether same-sex couples have a constitutional right to marry this April,[1] and in the wake of the Court’s recent decisions condemning moral disapproval as an insufficient basis for legislation,[2] the issue of morality’s place in the law has reached fever pitch.

In his article, Bruce P. Frohnen argues that the analytic divide between legal theories positing the separation of law and morals, and those identifying the two, is not as wide as has often been portrayed.[3] Frohnen argues that law and morality are inextricably linked, stating that while law is “a deeply practical craft” that “cannot bear the full weight of morality…without the substances of moral ends [law] will dissipate.”[4] Although Frohnen thoroughly discusses “morality” and argues there exists, at least, “a partial overlap in content between legal and moral obligation,”[5] he ultimately declines to define the particular type of “morality” he discusses and whether it is descriptive or normative. This ultimately leads to confusion for the reader as well as internal inconsistencies regarding what “morality” implies. The closest approximation of a definition that can be gleaned from the work is that morality is, at various times, “virtue,”[6] “order,”[7] and a “knowable common good,”[8] none of which necessarily comport with typical notions of “morality.” Most often, particularly as pertains to law, “morality” is defined in the descriptive sense, in reference to “some codes of conduct put forward by a society or, some other group such as a religion.”[9] Understood in this sense, acknowledging that morality has provided the foundation of many of our laws, the two are by no means indefinitely inseparable. In fact, recent judicial decisions have aimed to sever the ties between the two. Moreover, in light of these recent decisions, many have questioned whether it is proper for courts to be concerning themselves with “morality” at all.

The author’s assertion of the “irreducible” morality of law is additionally problematic because no single entity governs both morality and law.[10] Morality is generally subjective, often individually held, and widely variant, while law is articulated and set forth by a society as a governing and organizing principle. Furthermore, the forces defining what morality is and what the laws should be do not necessarily endeavor to achieve the same ends.[11] Frohnen’s main justification for his position that modern positivistic and moralistic theories are not as disparate as once believed is that they share the common “moral” goal of autonomy.[12] This position, although perhaps novel, is tenuous, at best, since whether autonomy is necessarily “moral” remains uncertain.[13] As support for his assertion, Frohnen cites to the U.S. Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, which states, “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Interestingly, while Frohnen interprets this language championing autonomy as a maximization of liberty, self-actualization, and self-definition as “moral,”[14] the court in Casey apparently did not intend that language to be morally prescriptive. To the contrary, the Casey court stated, “Our obligation is to define the liberty of all, not to mandate our own moral code.”[15] Therefore, while the author seemingly conflates the two concepts of morality and liberty, the Court specifically endeavored to separate the two.

The same language from Casey was quoted in Lawrence v. Texas, in support of the decision that individuals in homosexual relationships have the right to “seek autonomy” in the same way heterosexual individuals can.[16] The Lawrence court’s implementation of the same language further casts doubt on Frohnen’s articulation of “autonomy” as a “moral” principal, considering the majority in Lawrence overturned Bowers v. Hardwick,[17] which held there was no fundamental right to engage in homosexual sodomy on the basis that it was an immoral practice,[18] and specifically repudiated morality as an unsound basis for legislation.[19] The Lawrence court drew a sharp division between morality and law in its rationale. The court stated that the condemnation of homosexual conduct as immoral was shaped by “religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family.”[20] While acknowledging that, for many, those convictions are deeply held “ethical and moral principles,” the court ultimately concluded that the moral majority may not use the power of the State to “enforce these views on the whole society.”[21] Although the firm articulation that morality does not dictate the outcome of law is somewhat complicated by the moralistic language that permeates the rest of the Lawrence opinion,[22] the decision nevertheless represents the state of contemporary jurisprudence and refutes Frohnen’s central claim of “the irreducible, minimal morality of law.”[23]

Finally, considerable doubts have been raised about whether it is proper for the judiciary to address “moral” issues at all. As the classic case, Marbury v. Madison, provides, “It is emphatically the province and duty of the judicial department to say what the law is.”[24] While the role of courts to interpret and provide meaning to democratically approved laws is commonly understood and constitutionally sound, for many, including Justice Scalia, that role is increasingly becoming integrated, or perhaps more accurately stated, confused, with judges taking on the role of “moral arbiters for the world.”[25] Scalia questioned whether the binding answer “to that value-laden question” of what is necessary for the protection of morals should emanate from judgments issued by unelected judges.[26]

While morality has long been the foundation of many of our laws and, doubtless, remains so to this day, the direction of many prominent Court decisions have recently sought to sever the ties between morality and law. This casts doubt on the idea of the two concepts’ “irreducible” interdependent nature. That is not to say the two systems do not and will never run parallel, nor that they will often intersect, but it is not necessarily true that the survival of law relies on a dependent, concurrent co-existence with morality. Furthermore, the question remains whether it is the proper function of the judicial branch to serve as “moral arbiters” when we have a democratically accountable legislature.

[18] Bowers v. Hardwick, 478 U.S. 186, 196 (1986). “The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” Also,, “Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards” and “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.” Id. (Burger, J., concurring).

[19] Lawrence, 478 U.S. at 582. “This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group… is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.”

[22]Id. at 558. “The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.” Here, the majority asserts that the right to such a liberty is protected based on “dignity” and, essentially, the sanctity of the home—a very traditional and moralistic stance.

Professor Chad Flanders’ article in the Saint Louis University Law Journal, “Bridges and Ballots: Comments on Levinson” seeks to answer the questions of national identity and who should count in situations of voting, interpretation, and influence.[1] However, as one could imagine, such ambitious questions are not easily answered.

Flanders initially frames his analysis of the question around an international example: a 2006 discussion of a Hungarian bridge.[2] More appropriately, it was a discussion between famous satirist, Stephen Colbert, and his “Nation.”[3] The scenario was centered on an unnamed bridge that was being built in Hungary. Essentially, Hungary opened up the voting to the Internet for the masses to decide what the bridge would be named.[4] Sensing an opportunity, Colbert rallied his viewership and ultimately claimed a winning total that amounted to a number many times greater than the number of actual Hungarian citizens.[5]

Alas, there is no bridge named after one of America’s favorite political pundits and satirists. Rather, Hungary’s ambassador to the United States informed Colbert that certain requirements were not met—namely, that Colbert was not Hungarian.[6] According to Professor Flanders, this internet-voting scenario elicits the question: “who counts?”[7] This is where Professor Flanders reasons that nationalism comes into play.[8] He argues that, in the context of national treasures or national creeds, it is only the opinion of the citizens of that nation that should count.[9]

In the instance of the Hungarian bridge, I, along with Professor Flanders, believe that it is only the Hungarians who should count.[10] Yet, there is something to be said about a nation that chooses to open its forum as Hungary did. Common sense dictates that if Hungary wanted only its citizens to vote, it would not have opened the forum to the international community through the Internet. With that being said, the Hungarian bridge example, as used by Professor Flanders, is merely a device meant to illustrate a larger idea—who should count and why? This question is mainly put to task in reference to constitutional interpretation or legal formulation throughout the rest of Professor Flanders’ article.[11]

Subsequently, Professor Flanders points out two different approaches of interpretation, “international constitutionalism” and “democratic constitutionalism.”[12] International constitutionalism is a constitution-making process “of trying to get something right (protecting human rights, establishing the rule of law).”[13] Conversely, there is democratic constitutionalism, where:

[A] constitution is not to be conceptualized as something prior to or outside of democratic politics. On the contrary, a nation’s constitution ought to be made through national democratic processes, because the business of the constitution is to allow people to make their own fundamental law—to decide for themselves on the enduring legal and political commitments that will govern the polity in the future.[14]

Thus, the question of “who counts” is delineated into two camps of academic theory. One camp advocates for a more integrative approach that would presumably allow for increased cooperation and growth. The other seeks a nationalist aim that could lead to cohesion within a nation, but also the stifling of possibly beneficial international influences.

It is foreseeable that each nation would be reluctant to allow the influences of an international stage dictate a national ideology. But is that the correct way to approach the idea of influence? Set aside the example of the Hungarian bridge and frame the question, as Professor Flanders does, around capital punishment.[15] Is there nothing to be gained from looking outside our own borders to other great nations and how they approach such large and explicitly moral questions? From a democratic constitutionalist standpoint, such questions are a nation’s own and could lead to profound truths as to what defines that nation from within. However, the international constitutionalist understands that one nation’s opinions or laws are not always a complete view, but rather, an evolving question marching towards an ideal answer.

So, as Professor Flanders posits, “should we rely less on our community or should we rely more?” I am of the disposition that relying solely on one’s community as a democratic constitutionalist would result in the closing off of beneficial dialogues between nations. At its extremes it can lead to a nation that believes so wholeheartedly in its own community’s decisions that it will not break from that reality even when faced with a better option. Professor Flanders refers to this as a type of “idolatry.”[16] Further, although a nation “might reach the right answer on [their] own,”[17] there remains the possibility that the nation could forgo an opportunity to cooperate with others in coming to a joint, more complete, answer.

Consider how these two perspectives operate with regard to contemplated tort reform. It may or may not be common knowledge that “Americans go to court more often—and more expensively—than any other people in the world.”[18] Consequently, it has been posited that the United States could adopt the British “loser pays” model, wherein the losing party to a lawsuit would cover the winning party’s litigation costs.[19] The democratic constitutionalist would scoff at the idea of allowing the ideas of our overseas brothers to influence our arguably dysfunctional legal system. “But what of procedural due process and the opportunity to be heard,” asks democratic institutionalism? Democratic nationalism would point out that we’ve already made a commitment to how our legal system should operate. Even though a loser pays approach may solve the problems of frivolous lawsuits, it would also deter meritorious claims from being adjudicated. Although our system is functional and a uniquely American concern based in our Constitution, what if our answer is not complete? After all, America is virtually alone in our system of parties paying their own attorney’s fees.[20] Perhaps international institutionalism has a valid argument when seeking the consultation of international sources in an attempt to “get something right” rather than as an exercise in searching for or adhering to a national identity.[21] If a second constitutional convention were in America’s future would our legal system be different? I certainly think international institutionalism is not a perspective without merit.

A disassociating member of a limited liability company (LLC) brought an action against the LLC and its remaining member to recover its distributional interest in the LLC. The United States District Court for the District of Nebraska entered judgment in plaintiff’s favor, and the defendants appealed. The Eighth Circuit reversed, holding that plaintiff was not entitled to one-half of the LLC’s value.

Facts

Lincoln, an Illinois meatpacking company seeking to cut production costs, and Puretz, a New York real estate investor, formed an LLC for the purpose of bidding on two Nebraska cattle-processing plants.[1] Standard form Articles of Organization were filed in Illinois.[2] The Articles declared that the LLC was member-managed, and listed Lincoln and Puretz as the company’s two members, with each member holding a 50% interest in the company.[3]

To bid on the cattle-processing plants, the LLC was required to make an initial earnest-money deposit of $250,000 to an escrow account.[4] Lincoln and Puretz agreed that Puretz would contribute 70% of the capital required to acquire the plants, and that Lincoln would provide the remaining 30%.[5] In accordance with this agreement, Puretz contributed $150,000 and Lincoln contributed $100,000 to the total amount.[6] The parties intended to set out the financing and operational details in the company’s operating agreement once they had agreed on the various terms.[7] The LLC thereafter submitted a successful bid of $3,900,000 for the two plants.[8]

However, Lincoln and Puretz never executed an operating agreement for the LLC. Evidence showed that the parties agreed that their capital contributions would be repaid in full before the company’s profits and losses were divided equally between them.[9] However, they could not agree on other major financing and operational issues, including the procedure for calculating the value of the members’ respective ownership interests in the company.[10] Because of their inability to resolve their disagreements, Lincoln refused to contribute its agreed-upon 30% of the purchase price for the plants.[11] Puretz was thus required to pay the entire $3,900,000 purchase price, except for the $100,000 that Lincoln had previously paid into the escrow account.[12]

Shortly thereafter, Lincoln dissociated from the LLC.[13] Under Illinois law, “if a member of an LLC dissociates and the LLC does not dissolve, the LLC is required to purchase the dissociating member’s distributional interest under the terms agreed to by the LLC’s members.”[14] Lincoln and Puretz never executed an operating agreement that described the method for calculating the value of a member’s ownership interest in the LLC.[15] Thus, Lincoln filed suit seeking a determination of the fair value of its interest in the company.[16]

Procedural History

During a four-day bench trial, Lincoln argued that the fair value of its distributional interest in the LLC was “half the value of [the LLC],” while the LLC argued that the fair value of Lincoln’s interest was the $100,000 Lincoln contributed to the acquisition of the plants.[17] The district court acknowledged that awarding Lincoln its requested relief—50% of the $3,900,000 total value of the LLC, or $1,950,000—would result in an inequitable windfall.[18] However, the court ultimately concluded that the fair value of Lincoln’s distributional interest in the LLC was indeed 50% of the total value of the LLC, minus 30% of total purchase price that Lincoln failed to contribute at closing, plus a return of the $100,000 Lincoln contributed to the escrow account.[19] The district court entered an order awarding Lincoln $880,000 plus interest from the date of Lincoln’s dissociation.[20]

Court’s Analysis

The Eighth Circuit Court of Appeals held that the district court’s determination of Lincoln’s distributional interest was clearly erroneous.[21]

First, the court focused on the language of the Illinois Limited Liability Company Act.[22] The court stated that “once a dissociating member files suit seeking a judicial determination of the fair value of his distributional interest, the court must calculate the fair value of the interest after taking into account all ‘relevant evidence,’”[23] and that, “[i]n addition, ‘principles of law and equity supplement the Act.’”[24]

Next, the court of appeals disagreed with the district court’s finding that “because the evidence showed that Lincoln had a 50% interest in [the LLC], Lincoln was entitled to 50% of the value of [the LLC].”[25] Instead, the court outlined trial testimony regarding the parties’ original understanding that there would be a 70/30 proportional return of capital contributions prior to any 50/50 division of profits and losses.[26] The Court concluded that, although it was not finalized in an operating agreement, the evidence presented at trial clearly established that “Lincoln and Puretz contemplated that any capital they contributed to Hastings would be returned to them in proportion to their respective contributions before any profits or losses generated by the company’s operations were divided equally.”[27]

Furthermore, the Court emphasized that the LLC “was never operational.”[28] Thus, the Court reasoned there were no profits or losses to divide equally, and that Lincoln’s interest in the LLC was limited to its initial capital contribution.[29] Moreover, because Lincoln did not make its agreed-upon 30% contribution to the purchase price, Lincoln’s only contribution to the LLC was its $100,000 deposit in the escrow account.[30]

Therefore, the court of appeals reversed the judgment of the district court, and remanded the case with instructions to enter an order awarding Lincoln $100,000 plus interest from the date of its dissociation.[31]

Author’s Comment and Conclusion

The Eighth Circuit Court of Appeals’ reversal of the district court’s order in this case is clearly warranted. The trial testimony supported a finding that the parties had agreed to a proportional return of capital contributions. Allowing Lincoln to reap $880,000 from a $100,000 investment—especially considering that neither of the plants became operational nor generated any profits prior to Lincoln’s dissociation—would certainly have been a windfall.

Although the District Court acknowledged this fact, it nevertheless determined that Lincoln was entitled to 50% of the LLC’s value. Thus, this case highlights how difficult—and likely, how costly—resolving valuation problems can be when left up to the courts. This case also demonstrates that litigation could have been avoided entirely if an operating agreement was drafted before the parties embarked on their joint business venture. Of course, time is always a factor, and here it may not have been practicable to do so. Regardless, for future business dealings, this is where prudent legal counsel can make itself valuable. Attorneys should advise their clients that planning for an exit strategy is just as important as setting up the initial venture.

Arbitration clauses are becoming increasingly popular in employment contracts.[1] However, some scholars argue that arbitration clauses create public policy concerns.[2] They object because employees cannot fully assess the benefits and detriments of arbitration before a dispute arises.[3] Employers, on the other hand, can make predictions based on statistical probabilities affecting all of their employees.[4] In Baker v. Bristol Care, Inc., the Supreme Court of Missouri wrestles with this issue and demonstrates an unwillingness to enforce arbitration agreements.

History

In November 2010, Bristol Care, Inc. (“Bristol”) promoted Carla Baker (“Baker”) from her position as an hourly employee to a salaried managerial position as administrator of a residential care facility in Maysville, Missouri.[5] Bristol drafted an arbitration agreement and an employment agreement that both parties signed.[6] The employment agreement provided that Baker would receive increased pay and employment benefits and that the employment would continue until either Baker or Bristol gave notice or until Bristol terminated Baker’s employment for cause.[7] The arbitration agreement provided that all legal claims the parties had against each other would be resolved by arbitration. It stated that Baker’s consideration for the agreement was her continued employment and that Bristol’s consideration was its agreement to resolve its claims through arbitration.[8] It also provides that Bristol can amend, modify, or revoke the arbitration agreement upon 30 days written notice to Baker.[9] Baker was terminated from her position in May 2011.[10] When Baker sued Bristol for unpaid wages in September 2011, Bristol filed a motion to compel arbitration.[11] The Circuit Court of DeKalb County denied this motion and Bristol appealed.[12] After the Missouri Court of Appeals for the Western District affirmed the circuit court’s ruling, the Supreme Court of Missouri granted Bristol’s application to transfer the case.[13]

Court’s Analysis

The Supreme Court of Missouri began by acknowledging that if either one of the two forms of purported consideration in the arbitration agreement was legally sufficient to support Baker’s promise to arbitrate, the promise was enforceable.[14] The court cited Missouri Court of Appeals cases that held that continued at-will employment is not sufficient consideration to support an arbitration agreement.[15] The court adopted the analysis employed in these cases and rejected the approach taken by federal courts that had reached a different result. The court concluded that Baker’s continued employment was indeed at-will and therefore insufficient to support her promise to arbitrate.[16] By offering continued at-will employment, Bristol made no promise to do or refrain from doing anything because it could still terminate Baker at any time for any reason.[17] Both the indefinite duration of Baker’s employment and Bristol’s ability to terminate Baker immediately without cause were consistent with the hallmarks of at-will employment.[18] In fact, the arbitration agreement expressly referred to Baker as an “at-will employee.”[19]

The court acknowledged that arbitration agreements can be supported by mutual promises to arbitrate as long as such promises are not illusory.[20] A promise is illusory if one party retains the right to unilaterally amend the agreement and avoid its obligations.[21] Bristol argued that its right to “amend, modify or revoke” the arbitration agreement did not make its promise illusory because it still had to give 30 days prior written notice, implying that any modifications only apply prospectively.[22] The court rejected this argument because, even if no court would allow Bristol to unilaterally disclaim its promises for its own benefit, the language of the agreement permitted Bristol to do just that.[23] For Bristol’s promise to be sufficiently binding, it would have to be expressly limited to only making prospective amendments to the arbitration agreement.[24]

Author’s Analysis

It is true that the arbitration agreement did not expressly state that Bristol could only make prospective amendments. However, the court would have more accurately captured the parties’ intent by simply reading this into the contract instead of rendering everything in the arbitration agreement and employment agreement unenforceable. Bristol and Baker expressly agreed that courts could and should modify the arbitration agreement “to render it enforceable.”[25] Refusing to do so ignores the court’s duty to uphold and give effect to contracts[26] and fails to effectuate the parties’ intent.

Conclusion

By reading the arbitration agreement so strictly, the court was able to invalidate a contract that seemed unfair without relying on public policy arguments. However, courts should honor the intent of contracting parties at the time of formation, even when parties intend to make agreements that they will later regret.

Twelve-year-old Jessica Chavez (“Chavez”) was a patron at Oceans of Fun in Kansas City, Missouri when she suffered an unfortunate accident.[1] The accident occurred when Chavez was on a 680-foot-long water slide, riding on a raft with her aunt and two cousins.[2] During a turn, Chavez’s mouth collided with her cousin’s head, pushing her braces into her gums and knocking out her front tooth.[3] The injuries suffered by Chavez required extensive dental work, and she subsequently filed a negligence action against the owner and operator of the amusement park.[4] At trial, the court instructed the jury to apply the highest degree of care standard, defined as: “the degree of care that a very careful person would use under the same or similar circumstances.”[5] Traditionally, in Missouri, courts have not applied the highest degree of care standard in similar negligence matters, opting instead for the “ordinary negligence rule.”[6] The defense objected based upon the negligence instruction to the jury, and the case went to the Missouri Supreme Court to determine the appropriate standard to be applied in such cases.[7]

Legal Background

The ordinary negligence rule, also called the ordinary degree of care standard, “requires a defendant to exercise the degree of care of a reasonable person of ordinary prudence under similar circumstances.”[8] Whether the standard of ordinary care applies depends upon the particular circumstances involved in the case at hand. [9] This duty of care was first applied to situations involving public amusement by the Missouri Supreme Court in Berberet v. Electric Park Amusement Co.[10] There, in a negligence action against the operator of an amusement park, the Court held that “the rule in this state, and generally, is that the proprietor of a place of amusement owes to his patrons that duty which, under the particular circumstances, is ordinary care or reasonable care for their safety.”[11] The application of the rule articulated in Berberet has been consistently applied in cases concerning the alleged negligence of owners and operators at places of amusement.[12]

Conversely, the highest degree of care standard first surfaced in Missouri courts in 1866, but was confined to the context of “common carrier liability”.[13] The trial court in Chavez defined this highest degree of care as “the degree of care that a very careful person would use under the same or similar circumstances.”[14] The Missouri Supreme Court originally applied this standard of care to operators of steam railroads.[15] Outside of other modes of public transportation, the Court has only applied the highest degree of care standard to: (1) electric companies; (2) users of explosives; (3) users of firearms; and, (4) motor vehicle operators.[16] The general policy behind applying the highest degree of care standard is that certain activities are either so inherently or extremely dangerous, and have such a risk of widespread injury, that the law requires heightened protection.[17]

Court’s Analysis

The Court ultimately reversed the trial court’s judgment, opting to rule in line with what they viewed to be a clear line of precedent.[18] The Court believed that this ruling was supported by the fact that neither was the defendant a common carrier, nor was the activity inherently dangerous.[19] In determining that amusement parks such as Oceans of Fun should not be considered common carriers, the Court cited Branson Scenic Railway v. Dir. of Revenue, for the proposition that when the purpose of a ride is “for fun, as opposed to … getting the rider to a particular place, then the carrier is providing amusement rides. It is not in the transportation business, even though its mode of amusement is mobile.”[20] Furthermore, the Court did not consider amusement park rides to be inherently dangerous, which would have supported the application of the highest degree of care duty.[21] The Court reasoned that since amusement parks are not new and dangerous technology, they do not require the upmost degree of care; but rather the ordinary standard of care was sufficient to protect the patrons of these parks.[22]

Author’s Analysis

It seems that the Missouri Supreme Court came to a logical conclusion in overruling the trial court’s decision when it determined that neither was the defendant a common carrier nor was the amusement park ride inherently dangerous, considering both precedent and the facts of the case at hand. Missouri’s case law was certainly in favor of applying the ordinary standard of care in amusement park cases.[23] Additionally, the argument that the amusement rides should qualify the park as a “common carrier” seems to be a stretch. As the Court pointed out, the purpose of these rides is not transportation, and moreover, they do not share the same risks as other “common carriers” such as trains or airplanes. Also, these rides do not seem to be inherently dangerous, as the vast majority of people are aware of the nature of such attractions as well as the necessary safety precautions. Therefore, exercising the degree of care of a reasonable person under similar circumstances should be sufficient to adequately protect patrons of amusement parks such as Oceans of Fun.

Conclusion

The Missouri Supreme Court made the decision to uphold the precedent that had been established by Missouri courts for over 100 years. This decision re-affirms that the ordinary standard of care is what amusement park operators must abide by, which in the Court’s opinion is sufficient to protect patrons. The facts seem to show that such amusement parks do not fit into an exception for the general rule of ordinary care; as a common carrier or as an inherently dangerous activity. Upholding this standard of care will make it harder for individuals to bring negligence actions, thus encouraging the continued operation of amusement parks such as Oceans of Fun. This standard is ideal in that it does not hold operators to an unreasonably high duty while at the same time it effectively guards against the risk of injury.

As of 2012, 29.1 million Americans are living with diabetes.[1] Naturally, a large number of those diagnosed currently have, or will seek in the future, a license to drive.[2] However, driving with diabetes comes with many challenges, including risk of hypoglycemia, cataract formation, and neuropathy.[3] These difficulties have led to many licensing requirements and restrictions for diabetic drivers, including commercially licensed drivers, who are governed by federal regulation.[4] Recently, in Hampton v. Reliance Standard Life Insurance Company, the Eighth Circuit Court of Appeals evaluated some of these restrictions in their relation to disability benefits and held that revocation of a commercial driver’s license due to insulin-dependent diabetes did not in itself make a claimant eligible for long-term disability benefits.[5]

Background

Christopher Hampton worked as a truck driver for Ozark Motor Lines, Inc. from July 2008 to November 2010, when he was diagnosed with diabetes mellitus.[6] Because the United States Department of Transportation classifies any person with insulin-dependent diabetes as unqualified to operate a commercial motor vehicle, Hampton’s commercial license was disqualified.[7] Shortly thereafter, Hampton filed claims for both short-term and long-term disability benefits under the Ozark Motor Lines,Inc. Benefit Plan (the “Plan”).[8] Submitted with Hampton’s claim were two letters from his physician, Dr. Hawkins, that stated Hampton “could not work because he was ‘unable to obtain a DOT health card with his new diagnosis’” and that Dr. Hawkins “did not feel that Mr. Hampton [would] be able to obtain gainful employment noting his insulin dependent diabetes mellitus, which precludes him from operating any sort of heavy machinery or motorized vehicle based on the Department of Transportation regulations.”[9]

Reliance Standard Life Insurance Company (“Reliance”) denied Hampton’s long-term benefit claim, stating that to qualify as “Totally Disabled” under the Plan’s policy, an insured must be unable to perform the material duties of his regular occupation due to injury or sickness.[10] Further, Reliance continued, the Plan provided that if the insured “requires a license for such occupation, the loss of such license for any reason does not in and of itself constitute ‘Total Disability.’”[11] After an administrative appeal,[12] Hampton sued Reliance in 2012 and the district court of Arkansas qualified him as Totally Disabled, based on the loss of his license “as a result of an Injury or Sickness.”[13] The court entered judgment for Hampton, holding that Reliance abused its discretion and adopted an unreasonable interpretation of the Plan.[14]

Analysis

On appeal, the Eighth Circuit reversed and found Reliance’s interpretation of the Plan to be reasonable, stating that the diagnosis of diabetes mellitus indeed caused Hampton to lose his license, but that that fact alone was not enough to justify long-term benefits.[15] While this interpretation does not entirely shut out sick or injured claimants who lose their licenses, it does require “that the claimant show that the injury or sickness itself—independent of the loss of license—renders him unable to perform his occupation.”[16] The court also examined whether Reliance’s decision was supported by substantial evidence, noting that the letters submitted by Dr. Hawkins failed to identify any actual physical limitations on Hampton’s ability to work as a direct result of his diabetes.[17] As a result, Hampton’s inability to work was not directly linked to the symptoms of his diabetes.[18] The court noted that Hampton’s reliance on the DOT’s medical advisory criteria, which explains the risk of passing out, becoming disoriented, or going into a diabetic coma or shock while driving, did not rise to the level of Hampton presenting evidence his illness actually presents those risks.[19] With one dissenting opinion,[20] the court reversed the district court and stripped Hampton of his long-term benefits.[21]

Author’s Analysis

One can easily see how some could be angered by this decision. Mainly, how is a claimant in a position similar to Christopher Hampton ever supposed to receive long-term benefits? The court seems to be saying that, because “generalizations” posed by the DOT were not enough,[22] Hampton would have had to prove that his individual case of diabetes had an increased risk or had already caused him to experience heightened problems. This standard is impossibly high. One would think that losing your license would be proof enough of inability to perform a job, especially when a license is the main requirement needed for that job.

It is also worth noting that the court failed to acknowledge the link between Dr. Hawkins’s letter and the reference to language in the Federal Motor Carrier Safety Regulations. As stated in the dissent, the regulations state in great detail the risks and symptoms of diabetes, which if examined by the court, would show that Hampton was undoubtedly physically unable to perform his job as a driver, simply via his diagnosis. Moreover, acknowledgment of this link would have given Hampton the benefits he likely deserves.

Conclusion

The Eighth Circuit Court of Appeals held that loss of license alone does not show that a claimant is physically or mentally incapable of performing the material duties of his occupation in order to be eligible for long-term disability benefits.[23] While the court opined that Reliance did not abuse its discretion in this case, this narrow reading of the requirements of the Plan could harm future claimants in their attempts to receive benefits due to disability.

[12] Hampton filed an administrative appeal in 2012 and Reliance upheld the denial of his claim, stating that the Plan “explains that loss of a license does not constitute disability” and that “there must be evidence that one is physically or mentally incapable of performing the material duties of his occupation as truck driver.” Id. at 600.

[16]Id. The court also noted that Hampton’s alternative interpretation of the Plan would “render the loss-of-license provision surplusage,” by making loss of license due to sickness or injury sufficient to claim benefits. Id. Because “Total Disability” includes only inability to work due to injury or sickness, a driver who loses their license for non-medical reason would not qualify for benefits in the first place.

[22]Id. The court stated that the Plan required Hampton to present evidence other than “the generalizations upon which the government sometimes must rely in it’s regulatory capacity to avoid significant administrative burdens.” Id. These “generalizations” included Hampton’s risk of passing out, becoming disoriented, or going into a diabetic coma or shock while working as a truck driver. Id.

On December 18, 2014—some ten days after SLU Law Clinic lawyers, along with the Arch City Defenders and a private law firm, filed class action suits against seven St. Louis County municipalities alleging that they had been charging fees illegal under state law[1]— Missouri Attorney General Chris Koster filed a lawsuit against thirteen St. Louis County municipalities for keeping traffic fine revenues that exceeded thirty percent of their total revenues, in violation of Missouri’s “Macks Creek law.”[2]

Approximately one month earlier, in Missouri Banker’s Ass’n, Inc. v. St. Louis County, the Missouri Supreme Court issued a decision striking down a St. Louis County (“the County”) ordinance because the County exceeded its authority to exercise its legislative authority in contradiction to state legislation, thus making the ordinance void ab initio.[3] In a lone dissent, Judge Teitelman argued that the County’s ordinance was a valid exercise of the County’s constitutionally-granted authority and was valid despite being at odds with the Missouri statute.[4]

This article will argue that Judge Teitelman’s dissent was correct. The defendant municipalities in Koster’s suit might look for a defense in this dissent. However, even Teitelman’s view would not give the municipalities a defense, as discussed below.

II. The Decision In Missouri Banker’s Association

A. Brief Description

In October of 2012, in response to the national foreclosure crisis, the County amended its Mortgage Foreclosure Intervention Code to include a requirement that lenders offer homeowners the opportunity to mediate an agreement to keep them in their homes prior to foreclosure.[5] In 2013, during the pendency of the appeal, the state legislature passed a bill that would abolish this ordinance.[6] When the County tried to implement the ordinance against two banks attempting to foreclose mortgages, the banks sued seeking injunctive relief and a declaratory judgment that the ordinance was invalid.[7] The lower court sustained the County’s motion for summary judgment, the Court of Appeals dismissed the banks’ appeal, and the Supreme Courted granted transfer.[8]

B. Majority Opinion

The majority acknowledged that the County’s police power is constitutional, granted by article VI, section 18(c). When this authority is properly exercised by the county, it is “not subject to, but take[s] precedence over, the [state’s] legislative authority.”[9] The majority concluded that here the County did not properly exercise this police power because the ordinance did not address “a matter of purely local concern.”[10] The majority reasoned that since the County can function sometimes as a state agency and sometimes as a municipality exercising its local police powers, the question hinged on which authority the County was exercising with this ordinance.[11] The majority concluded that because the ordinance was meant to ameliorate effects of a national problem the County was not exercising its local police power function.[12] Therefore, the county ordinance could not supersede the state statute.

C. Judge Teitelman’s Dissent

Judge Teitelman argued that the ordinance was a proper exercise of the County’s constitutionally-granted legislative authority.[13] He reasoned that the cause of the problem was irrelevant, and that the effect of the ordinance was analogous to condemnation or zoning regulations in that it essentially “regulate[d] the disposition of real estate.”[14] The ordinance had no effect outside of St. Louis County and could not be construed to be an attempt to resolve a national problem. It was, rather, an attempt to slow the increase in vacant houses in the County. Perhaps Teitelman’s strongest expression of the argument is to consider the result under the majority’s decision: “If the passage of section 443.454 could render the mediation program contrary to the ‘general legislation of the public policy of the state as a whole,’ then the scope of the County’s constitutional grant of legislative power would be defined not by the text of the constitution but by the whim of the legislature.”[15] In other words, the majority’s holding would render section 18(c)’s provision vesting legislative powers to the County meaningless; a constitutional granting of legislative authority to the County is not consistent with the state legislature being able to withhold that authority. The majority effectively amended the Missouri Constitution to dispose of the constitutional grant of legislative authority.

D. Author’s Analysis

The majority is wrong to conclude that the ordinance is other than local in nature since it has absolutely no application to property or foreclosure taking place beyond the County’s geographical boundaries. The fact that the underlying cause of the problem is a problem common to the entire national economy does not change the purely local effect of the ordinance: mediation of foreclosures only within the county. Furthermore, the effect of the majority’s decision is a precedent for giving the state legislature review of the County’s constitutionally-granted legislative authority. The legislature is overstepping its constitutional powers by revoking the constitutionally-granted legislative authority through simple legislation. Article 12 lays out the procedure to amend the Missouri Constitution, and makes it clear that a simple act of the legislature is insufficient.[16] Therefore, Judge Teitelman’s dissent should be the law.

At first glance, it appears that Judge Teitelman’s dissent suggests that a defendant-municipality in Koster’s suit may properly exercise its police powers even when that exercise is directly prohibited by Missouri statute. This is not true. In fact, even if Judge Teitelman’s opinion were binding, it would not afford the municipalities any defense.

St. Louis County derives its powers from the Missouri Constitution, as noted above. By contrast, the defendant municipalities in Koster’s lawsuit are a collection of villages and cities of various classes,[18] all subject to section 71.010 of the Missouri Revised Statutes which states that a municipality must “confine and restrict its jurisdiction and the passage of its ordinances to and in conformity with the state law upon the same subject.”[19] Even the strongest form of municipality, a “home rule” city chartered under article 6, section 19 of the Missouri Constitution, can only pass ordinances that do not conflict with Missouri statutes.[20] Municipalities, unlike counties, never received a grant of constitutional authority because, unlike section 18(c), section 19 contains no language whatsoever vesting a legislative authority.[21] The case that the Supreme Court relies upon for its assertion that this county authority can “take precedence over” Missouri statutes was also addressing the authority of a charter county under 18(c).[22] Thus, the defendant municipalities in Koster’s lawsuit do not get the constitutional grant of authority from section 18(c).

B. Article 6, Section 18(c) Grants Only Legislative Power

Even if the defendant municipalities did somehow fall under 18(c), they still would not benefit because the grant is only of a legislative authority. Judge Teitelman’s argument pertains to an exercise of legislative authority granted by the Missouri Constitution: “For the foregoing reasons, I would hold that the foreclosure ordinance is a valid exercise of the County’s legislative power as granted by article VI, section 18(c) of the Missouri Constitution.”[23] Koster’s lawsuit is a complaint against the executive practices of these municipalities and not against any legislative authority asserted by them.[24] Koster’s complaint targets the failure of the defendant municipalities to give a proper accounting that shows they are only retaining traffic violation revenues that comprise less than thirty percent of each municipality’s total revenues.[25] Thus even if the defendant municipalities enjoyed a grant of legislative authority under 18(c), this fact would offer them no defense against Koster’s complaint.

Conclusion

If the defendant municipalities enjoyed a constitutional grant of legislative authority under 18(c), and if that authority were properly the matter in controversy in Koster’s lawsuit, then the analysis would focus on whether or not defendants’ exercise of that authority was a proper exercise of their police power, as in Missouri Bankers Ass’n. Reasonable minds could perhaps disagree on this question.

However, since this is not the case, the disposition of Koster’s lawsuit should be a simple matter of asking whether or not the conduct of the defendants comports with the Macks Creek law. There will not likely be any examination of the question of municipal authority to supersede the Missouri statute.

[17] There is no need to discuss the majority’s application to Koster’s suit because the result is clear: the majority opinion would not apply for the very same reasons the dissent does not apply, to wit, the municipalities do not fall under the article 6, section 18 grant of legislative authority, and no legislative authority of the municipalities is at issue in Koster’s lawsuit.

[20]See, e.g., Unverferth v. City of Florissant, 419 S.W.3d 76, 93–94 (Mo. Ct. App. 2013) (holding that a charter municipality is subject to RSMo § 71.010 and “shall confine and restrict the passage of its ordinances to and in conformity with state law upon the same subject.”).

[21]Compare Mo. Const. art. 6 § 18(c), which specifically states that a county charter “may provide for the vesting and exercise of legislative power,” with Mo. Const. art. 6 § 19, which has no such provision.